Lavanders Marquis Muskin A/K/A Lavenders Muskin A/K/A Quez A/K/A Lavanders Muskin v. the State of Texas

Opinion filed December 16, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00391-CR
__________
LAVANDERS MARQUIS MUSKIN A/K/A LAVENDERS
MUSKIN A/K/A QUEZ A/K/A LAVANDERS MUSKIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 12384-D
MEMORANDUM OPINION
In 2016, a jury convicted Lavanders Marquis Muskin of the first-degree
felony offense of aggravated sexual assault. Appellant appealed his conviction and
sentence to our court. See Muskin v. State, No. 11-16-00339-CR, 2018 WL 5074553(Tex. App.—Eastland Oct. 18, 2018, pet. ref’d) (mem. op., not designated for
publication). In our 2018 opinion, we affirmed Appellant’s conviction, but we
reversed and remanded for a new trial on punishment only. Id. at *4–5. Specifically,
we determined that Appellant’s punishment was improperly enhanced to that of a
habitual offender. Id. at *4.
This appeal arises from the new punishment trial that occurred after our
remand. The jury assessed Appellant’s punishment at imprisonment for life in the
Institutional Division of the Texas Department of Criminal Justice and a fine of
$10,000. The trial court sentenced Appellant accordingly. Appellant brings a single
issue on appeal alleging he received ineffective assistance of counsel during the
punishment trial. We affirm.
Background Facts
The underlying facts of this case are set out in our 2018 opinion. See id. at *1.
As relevant to the proceeding before us, a jury found Appellant guilty of aggravated
sexual assault of H.S. At the outset of the punishment trial on remand, the State
offered into evidence State’s Exhibits Nos. 1–26 which were all of the State’s
exhibits previously admitted during the first trial that occurred in 2016. 1 Appellant’s
trial counsel did not object to the admission of the State’s exhibits, and the trial court
admitted the exhibits, finding that they had been “previously considered by the Court
and admitted.”
After the admission of the exhibits, the jury heard testimony from H.S. and
three other women who alleged that Appellant had also sexually assaulted them. The
other victims included L.R., D.C., and J.C. Susie Striegler, a forensic nurse
examiner, testified that she performed a sexual assault examination on H.S. and L.R.
Striegler testified that the purpose of a sexual assault exam is “strictly medical.”
1
State’s Exhibits Nos. 1–25 were admitted during the guilt/innocence portion of the first trial.
State’s Exhibit No. 26 is a pen packet from Mississippi that was offered during the punishment phase of
the first trial. In this appeal, Appellant does not present any complaints concerning the admission of State’s
Exhibit No. 26.
2
During her testimony, Striegler read to the jury her previously admitted reports from
both victims’ sexual assault exams.
April Songer, another forensic nurse examiner, testified that she performed a
sexual assault exam on J.C. She testified that collecting forensic evidence is a
secondary purpose of a sexual assault exam and that the primary purpose of the exam
is to evaluate medical issues and provide treatment to the victims of sexual assault.
During her testimony, Songer read to the jury her report from J.C.’s exam.
Appellant’s trial counsel objected at this point on hearsay grounds. The trial court
refused to hear a new objection because the report was contained within the
previously admitted trial exhibits. The trial court noted that the exhibits were already
properly admitted during the first trial and found that a “witness is entitled to read
from an admitted exhibit.”
Throughout the punishment trial on remand, the prosecutor used a “tool” and
“toolbox” analogy when referring to the jury’s purpose. At the close of the
punishment trial, the prosecutor made closing arguments that contained a plea for
law enforcement. The prosecutor referred to the four options available to the jury in
the punishment charge and explained that each of the four options was an available
“tool” that the jury could use to “protect society.” After Appellant’s trial counsel
made his closing argument, the prosecutor’s rebuttal argument again made use of
the tool analogy—asking the jury to use the “biggest hammer that [it had] in [its]
toolbox” to “send a message” to Appellant, the victims, and the community.
Appellant’s trial counsel did not object to the State’s argument.
Analysis
In his sole issue on appeal, Appellant contends that he received ineffective
assistance of counsel. He contends that trial counsel was deficient because
(1) counsel failed to object, on confrontation grounds, to Songer reading a report
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containing J.C.’s statements and (2) trial counsel erred by not objecting to improper
jury argument by the State.
To establish that trial counsel rendered ineffective assistance at trial,
Appellant must show that counsel’s representation fell below an objective standard
of reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
A reasonable probability is one sufficient to undermine confidence in the outcome
of the trial. Strickland, 466 U.S. at 694. There is a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance, and the
appellant must overcome the presumption that the challenged action could be
considered sound trial strategy. Id. at 689.
A claim of ineffective assistance of counsel “must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996)). Direct appeal is usually an inadequate vehicle to raise such a
claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005). Direct appeal is especially inadequate when
counsel’s strategy does not appear in the record. Id. Trial counsel should ordinarily
have an opportunity to explain his actions before an appellate court denounces
counsel’s actions as ineffective. Id. Without this opportunity, an appellate court
should not find deficient performance unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Id. (quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim App. 2001)).
We note at the outset that Appellant did not allege ineffective assistance of
counsel in his motion for new trial. Thus, trial counsel has not had an opportunity
to explain or defend his trial strategy in response to the matters that Appellant
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contends were deficient. Furthermore, trial counsel has not had an opportunity to
explain what effect, if any, his alleged deficient conduct had on the manner in which
he represented Appellant at the punishment trial.
Appellant’s claims of ineffective assistance of counsel are premised on his
trial counsel’s failure to object on various grounds. When alleging ineffective
assistance of counsel for failure to object, an appellant must demonstrate that, if trial
counsel had objected, the trial court would have erred in overruling the objection.
See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).
Appellant initially contends that his trial counsel was deficient because he
failed to object to the admission of J.C.’s statements that were contained within
Songer’s sexual assault examination report. Appellant’s argument is two-fold: he
first argues that his counsel incorrectly stipulated to the admission of the exhibit that
Songer read to the jury, and second, he argues that trial counsel should have objected
because the report contains J.C.’s testimonial statements, which violates his
confrontation rights.
“By operation of law, the evidence admitted during the guilt-innocence phase
of the trial is also before the jury at the penalty phase, and the jury may consider all
the evidence adduced at the guilt-innocence phase in assessing a defendant’s
punishment.” Atkinson v. State, 404 S.W.3d 567, 572 (Tex. App.—Houston [1st
Dist.] 2010, pet. ref’d) (citing Wright v. State, 212 S.W.3d 768, 776 (Tex. App.—
Austin 2006, pet. ref’d)); see Green v. State, 839 S.W.2d 935, 945–46 (Tex. App.—
Waco 1992, pet. ref’d) (“Evidence presented during the guilt stage is automatically
before the jury on punishment regardless of whether it is formally re-offered by the
State.”). Thus, there is no requirement that evidence admitted during the
guilt/innocence phase be re-offered to be considered for punishment. See Trevino v.
State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). This principle has been
recognized by the Texas Court of Criminal Appeals in a situation where a case is
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remanded for a new punishment trial. Davis v. State, 329 S.W.3d 798, 820 (Tex.
Crim. App. 2010) (citing Trevino, 100 S.W.3d at 238).
Appellant faults his trial counsel for not objecting to the admission of the
evidence admitted during the first trial.2 But as set out in the preceding paragraph,
the evidence admitted during the guilt/innocence phase of the earlier trial was
available for the jury’s consideration at the new punishment hearing. See id.Because an objection to the exhibits admitted during the earlier trial would have
been futile, Appellant’s trial counsel was not ineffective for not objecting to the
admission of the previously admitted exhibits. See Templeton v. State, 629 S.W.3d
616, 625 (Tex. App.—Eastland 2021, no pet.).
Appellant also contends that trial counsel should have later objected to J.C.’s
statements contained within the sexual assault examination report because their
admission violated his rights under the Confrontation Clause. See U.S. CONST.
amend. VI. Appellant contends that we should interpret the statements in the report
as testimonial under Crawford, because he can “hardly see how a person giving a
history of sexual assault to a sexual assault nurse examiner would not be seriously
contemplating that their words would be used in furtherance of a prosecution.” See
Crawford v. Washington, 541 U.S. 36, 59 (2004) (holding that the Sixth Amendment
is violated when a witness is permitted to relay out-of-court testimonial statements—
unless the declarant is unavailable and the defendant had a prior opportunity to cross-
examine the declarant).
We first note that Appellant did not challenge in his prior appeal the admission
of J.C.’s statements on the basis of a Confrontation Clause violation. When a witness
provides a statement to a medical professional, as opposed to a law enforcement
2
We note that Appellant had different trial counsel at the punishment trial on remand than he had
during the 2016 trial.
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officer, and the statement is made primarily for the purpose of medical treatment,
the statement is not typically considered testimonial within the meaning of
Crawford. See Melendez–Diaz v. Massachusetts, 557 U.S. 305, 312 n.2 (2009).
“Virtually all Texas courts that have considered the issue have concluded that when
a patient gives a verbal history to a sexual assault nurse examiner or other medical
professional during a sexual assault exam for the purpose of receiving medical
treatment, the history is not considered testimonial within the context of Crawford.”
Ervin v. State, No. 08-15-00025-CR, 2017 WL 3614237, at *11 (Tex. App.—El Paso
Aug. 23, 2017, pet. ref’d) (not designated for publication) (collecting cases); see,
e.g., Murray v. State, 597 S.W.3d 964, 973–74 (Tex. App.—Austin 2020, pet. ref’d);
Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref’d);
see also Anavisca v. State, No. 14-20-00160-CR, 2021 WL 4535409, at *8 (Tex.
App.—Houston [14th Dist.] Oct. 5, 2021, no pet. h.) (mem. op., not designated for
publication); Dobbs v. State, No. 02-17-00246-CR, 2018 WL 3060093, at *3 (Tex.
App.—Fort Worth June 21, 2018, pet. ref’d) (mem. op., not designated for
publication); Garrett v. State, No. 12-15-00208-CR, 2017 WL 1075710, at *3 (Tex.
App.—Tyler Mar. 22, 2017, no pet.) (mem. op., not designated for publication).
Appellant argues that “there is no evidence in this case that [J.C.] was in great
need of medical attention. She was building a criminal case.” However, Songer
testified that the primary purpose of a sexual assault exam is to evaluate medical
issues and provide treatment after a sexual assault. She testified that collecting
forensic evidence is a secondary purpose. Striegler also testified that the purpose of
a sexual assault exam is “strictly medical.” Thus, we conclude that the statements
contained in the report were non-testimonial and that Appellant’s trial counsel was
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not ineffective for not objecting to the statements. 3 As previously noted, the report
had already been admitted during the guilt/innocence phase of the prior trial.
Further, the trial court was correct in stating that a witness may read from an
admitted exhibit. See Wheatfall v. State, 882 S.W.2d 829, 838 (Tex. Crim. App.
1994).
Appellant next complains that his trial counsel was deficient because he failed
to object to the prosecutor’s closing argument, which he contends was improper.
Appellant concedes that it is proper to ask the jury “to send a message,” but he
contends that asking the jury to “hammer” the accused is a “visceral appeal to the
desire for vengeance” and is not proper argument.
Proper jury argument “falls within one of four areas: (1) summation of the
evidence, (2) reasonable deduction from the evidence, (3) answer to an argument of
opposing counsel, and (4) plea for law enforcement.” Freeman v. State, 340 S.W.3d
717, 727 (Tex. Crim. App. 2011). When reviewing an alleged error in improper jury
argument, the appellate court must analyze the statement in light of the entire
argument. Temple v. State, 342 S.W.3d 572, 603 (Tex. App.—Houston [14th Dist.]
2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013). We consider the challenged
remark in the context in which it appears. Gaddis v. State, 753 S.W.2d 396, 398
(Tex. Crim. App. 1988). The purpose of closing argument is to aid the jury in
properly analyzing evidence and to aid it in reaching a just conclusion based only on
the evidence presented. Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App.
2019).
Here, the prosecutor’s argument to send a message to the victims and the
community was a proper plea for law enforcement. Freeman, 340 S.W.3d at 729;
Although J.C. had not yet testified during the punishment trial at the time Songer read her
3
previously admitted report to the jury, the State called her as its next witness. J.C. gave a more detailed
account of the sexual assault, and she was subject to cross-examination.
8
Borjan v. State, 787 S.W.2d 53, 55–56 (Tex. Crim. App. 1990). One of the goals of
the Penal Code is to ensure the public safety through deterrence, rehabilitation, and
punishment. See TEX. PENAL CODE ANN. § 1.02(1) (West 2021). The prosecutor’s
argument employed the analogy of tools and toolboxes—an analogy that the
prosecutor had used throughout trial. The prosecutor referred to the four options in
the punishment charge as tools available to the jury to send a message to the
community. The prosecutor’s argument that the jury use its “hammer” to send a
message can reasonably be understood, in the context of the whole argument, as an
appeal to impose the harshest of the four available punishment options. Thus, the
prosecutor’s closing argument was not improper, and Appellant’s trial counsel was
not ineffective for not objecting to it. We overrule Appellant’s sole issue.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
December 16, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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